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Sunder Dumanna Shetty Vs. K.D. Billimoria and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberMisc. Appl. No. 284 of 1957
Judge
Reported inAIR1959Bom346; (1958)60BOMLR1314
ActsBombay Police Act, 1951 - Sections 2(10), 33, 33(1), 33(7), 110 and 167; Bombay Police Rules - Rules 5, 5(1), 8(1), 10, 11, 12, 13-A, 13-A(4), 17-A(1), 19-A, 21(1), 22, 23, 24, 27 and 33(1); ;Constitution of India - Articles 14, 19(1), 19(6) and 226; Bombay Prohibition Act, 1949 - Sections 24-A; Bombay City Police Act, 1902 - Sections 22 and 22(3); Uttar Pradesh Coal Control Order, 1953; Ajmer Government Wards Regulation, 1888 - Sections 6 and 7; Bombay Public Security Measures Act, 1947 - Sections 2(1); Cotton Textile (Control of Movement) Order 1948; Essential Supplies (Temporary Powers) Act, 1946 - Sections 3; Drugs Act, 1940
AppellantSunder Dumanna Shetty
RespondentK.D. Billimoria and anr.
Appellant AdvocateSorabjee, Adv.
Respondent AdvocateAdv. General and ;Kantawalla, Adv.
Excerpt:
bombay police act (bom. xxii of 1951), sections 33(1)(w), 33(7), 2(10), 167; rules 13-a(4), 5(1), 27 - city of bombay police act (iv of 1902), section 22; rule 5--constitution of india, articles 19(1)(g), 19(6), 14--validity of rule 13-a(4)--whether rule can lay down conditions as regards personal qualifications of person seeking to renew licence in relation to places of public entertainment--section 33(7), whether limits or restricts power conferred under section 33(1)(w)--whether rule 13-a(4) violates fundamental right under article 19(1)(g)--meaning of term 'suitable' in rule 13-a(4).;under section 33 of the bombay police act, 1951, the commissioner of police, bombay, was competent to enact rule 13-a(4) of the rules framed under the act.;the conditions of suitability of a person for.....1. sunder dumanna shetty, the petitioner herein, is the proprietor of an eating house and restaurant named shauti bhuvan hindu hotel, situate at clark road, jacob cirefe, bombay, herein-after referred to as 'the hotel'. a licence had been issued to the petitioner under the provisions of the bombay police act, 1951, being licence no. 970/ehl 1954-55 in respect of the said hotel. the said licence was renewed from time to time upto 31st march 1957. on 28th february 1957 the petitioner made an application for the renewal of the said licence for the year 1957-58. on 2nd august 1957 the commissioner of police, bombay, issued a notice against the petitioner, stating that for the reasons set out in the said notice the commissioner of police proposed not to renew the said licence in favour of the.....
Judgment:

1. Sunder Dumanna Shetty, the petitioner herein, is the proprietor of an eating house and restaurant named Shauti Bhuvan Hindu Hotel, situate at Clark Road, Jacob Cirefe, Bombay, herein-after referred to as 'the hotel'. A licence had been issued to the petitioner under the provisions of the Bombay Police Act, 1951, being licence No. 970/EHL 1954-55 in respect of the said hotel. The said licence was renewed from time to time upto 31st March 1957. On 28th February 1957 the petitioner made an application for the renewal of the said licence for the year 1957-58. On 2nd August 1957 the Commissioner of Police, Bombay, issued a notice against the petitioner, stating that for the reasons set out in the said notice the Commissioner of Police proposed not to renew the said licence in favour of the petitioner and called upon the petitioner to show cause why such action would not be taken. The petitioner was required to appear before the Commissioner of Police on 9th August 1957 for that purpose. In response to the said notice, the petitioner appeared before the Commissioner of Police on 9th August 1957 and urged that the reasons on which the Commissioner of Police proposed to act as aforesaid were without foundation and entirely baseless. On 2nd September 1957 the Commissioner of Police passed an order rejecting the application for renewal of the said licence on the ground that the petitioner was not a suitable person to hold such a licence. On 4th September 1957 the Commissioner of Police addressed a letter to the petitioner, stating that he had refused to renew the licence and enclosed a copy of the said order.

2. The petitioner challenges the validity of the said order and has filed the petition herein for the issue of a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order under Article 226 of the Constitution of India ordering and/or directing the respondents or any of them to withdraw and cancel the said order dated the 2nd September 1957 and further directing the respondents or any of them to renew the licence in respect of the said hotel, or in the alternative, directing and/or compelling the Commissioner of Police to withdraw the said order dated 2nd September 1957 and to proceed to hear and determine the petitioner's application for renewal of the licence in accordance with law.

3. The impugned order has been passed by the Commissioner of Police in exercise of the powers vested in him under Rule 13-A (4) of the rules framed under the provisions of section 33 of the Bombay Police Act, 1951. The said rule provides as under:--

'13-A (4). The Commissioner of Police may refuse to renew the licence if he is satisfied after such enquiry as he thinks fit, that the licence is not a suitable person for continuing to hold the licence'.

It is contended by the petitioner that Rule, 13-A (4) is not warranted by the provisions of the aforesaid section 33 under which it is purported to have been framed, and that it is not within the competence of the Commissioner of Police, who has framed the aforesaid rule, to do so. This ground is not set out in the petition. Mr. Sorabjee, who appears for the petitioner, desired to amend the petition in order to take this additional plea. The learned Advocate General, who appears for the respondents, stated that he had no objection to the point being urged on the present petition, it being purely a point of law, without a formal amendment begin made to the petition.

4. Section 33 of the Bombay Police Act, under which the aforesaid rule has been framed, in so far as it is material runs as follows:

'33(1). The Commissioner and the District Magistrate, in areas under their respective charges or any part thereof, may make, alter or rescind rule or orders not inconsistent with this Act for--

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(w) (i) licensing or controlling places of public amusement or entertainment.

(ii) prohibiting the keeping of places of public amusement or entertainment or assembly, in order to prevent obstruction, inconvenience, annoyance, risk, danger or damages to the residents or passengers in the vicinity;

(iii) regulating the means of entrance and exit at places of public amusement or entertainment or assembly, and providing for the maintenance of public safety and the prevention of disturbance there at; XXXXX

(7) Notwithstanding anything hereinbefore contained in this section or which may be contained in any rule made thereunder, it shall always be lawful for the competent authority to refuse a licence for, or to prohibit the keeping of any place of public amusement or entertainment by a person of notoriously bad character.'

The expression 'place of public entertainment' has been defined by section 2(10) of the said Act to mean

'any place to which the public are admitted, and where any kind of food or drink is supplied for consumption on the premises by any person owning or having an interest in or managing such place and includes a refreshment room, eating house, coffee house, liquor house, boarding house, lodging house, hotel, tavern or wine, bear, spirit, arrack, toddy, ganja, bhang or opium shop or a shop where any kind of food or drink is supplied to the public for consumption in or near such shop.'

It is urged by the learned counsel for the petitioner that the rules framed under section 33(1)(w) may impose conditions relating to the place of public amusement or entertainment but cannot lay down any conditions as regards the personal qualifications of a person for the purpose of being eligible for holding a licence. It is further urged that section 33(7) under which a licence may be refused to a person of notoriously bad character has been provided in order to empower a competent authority to refuse a licence to a person of notoriously bad character, as it must have been felt that without such express provision the competent authority would not be otherwise empowered to refuse a licence to a person of notoriously bad character. My attention has been drawn to various other provisions of section 33 relating to rules or orders for the granting of a licence in connection with various other activities. It is urged that section 33 makes a distinction between licensing persons and licensing places. Under section 33(1)(a) a provision has been made for rules relating to licensing and controlling persons offering themselves for employment at quays, wharves and landing places, and outside Railway stations, for the carriage of passengers' baggages, and fixing and providing for the enforcement of a scale of charges for the labour of such persons so employed. There are other provisions relating to rules for the grant of licences in connection with display of pictures, advertisements, carrying in streets and public places of gunpowder or any other explosive substance, the playing of music, the illumination of streets, and public places, the blasting of rock and the use of loudspeakers, etc. It is urged that the objection of Section 33(1)(w)(i) was to provide for rules or order relating to the licence and control of places of public amusement and that it does not empower the Commissioner of Police to frame rules imposing restrictions as regards the persons who were to hold such licences. In my view there is not much merit in this connection. In order to license or control a place of public amusement or entertainment, it is necessary that the licence should be given to some person. That person must be a proper person for carrying out the terms of the licence and for seeing that the conditions subject to which the licence is granted are observed. A licence may not be granted to a person of unsound mind or to a minor and it cannot be said that if a rule is framed requiring that a person who applies for a licence must have attained the age of majority and must be a person of sound mind, it would not be within the ambit of the authority conferred by Section 33(w) of the Act. It cannot be said that every rule which lays down a personal qualification for the grant of a licence would be bad in law. The rules that have been framed for keeping places of public entertainment in Greater Bombay impose numerous conditions upon a person holding such a licence. B Rule 8(1) it is provided that no person keeping a place of public entertainment shall absent himself therefrom during the time it is open without obtaining the previous permission of the licensing authority to be endorsed on the licence, unless he has an agent to act for him in the management of such place, to whom permission has been granted for that purpose by the licensing authority and such permission is endorsed on the licence. Rule 10 provides that every person keeping a place of public entertainment shall keep the entire premises in a clean and sanitary condition and in good repair and that all appliances (including furniture) used in the premises shall also be kept clean. Under Rule 11 it is the duty of the licensee to inform the Commissioner of Police immediately of any case of infectious disease occurring at his place at any time. Under Rule 12 it is provided that during an epidemic every person keeping a place of public entertainment shall comply with all instructions and restrictions as may be issued to him from time to time by the Commissioner of Police in respect of any measures considered necessary by him to prevent the spread of disease Under Rule 17-A (1)(a) no person keeping a place of public entertainment shall refuse admission to such place to any member of the Harijan caste or Scheduled classes on the ground of his being a member of such caste or classes. Under Rule 19 it is provided that no person keeping a place of public entertainment of class 'B' shall keep or supply therein any foreign liquor, country liquor or intoxicating drug as defined by the Bombay Prohibition Act, 1949, or any opium as defined by the said Act or shall permit to be consumed in such place any such foreign liquor, country liquor, intoxicating drug or opium howsoever procured. Under Rule 19-A no person keeping a place of public entertainment of Class 'B' shall in or on such place (a) supply for being used as an intoxicating drink, or (b) knowingly permit the use of as an intoxicating drink, any article mentioned in Section 24-A of the Bombay Prohibition Act, 1949. Rule 20 provides that every person keeping a place of public entertainment shall take efficient steps to prevent over-crowding in or at such place and in the event of any disturbance or accident involving injury to human life or limb happening therein or thereat, shall give immediate information of the same to the Police. Under Rule 21(1) no person keeping a place of public entertainment shall play or allow any music to be played in such place except in accordance with the provisions therein mentioned. Under Rule 22 no person keeping a place of public entertainment shall perate or cause to be operated a slot or amusement machine in such place except with the approval of the Commissioner of Police. Under Rule 23 it is provided that if any person keeping a place of public entertainment knowingly permits prostitutes for the purpose of their trade or persons of notoriously had character to meet or remain in such place, the Commissioner of Police shall have the power in his discretion at any time to cancel a licence granted under the rule or to suspend it for such period a she may certify and to direct such person to close the place either permanently or for such period as he may specify. It is further provided that the person to whom such direction is issued by the Commissioner of Police shall forthwith comply with such direction. Rule 24 provides that every person keeping a place of public entertainment shall conduct his or her occupation or business in such place in an orderly manner. Under Rule 6 issued unless the person keeping the place of public entertainment satisfies the Commissioner of the Bombay Shops and Establishments Act, 1940 and the rules made thereunder. It is necessary in order that these and other rules, which have been framed in connection with the keeping of places of public entertainment may be duly and effectively complied with, that the licence must be a person capable of complying with an carrying out the provisions of the rules and must be a fit and proper person for doing so. Under Rule 5(1) it is provided that every person applying for a licence to open or keep a place of public entertainment shall in the first instance satisfy the Commissioner of Police that (i) the applicant is suitable, (ii) the locality where such place of entertainment is to be opened is fit for the purpose proposed, (iii) that the place proposed to be used as a place of public entertainment is fit for the purpose for which it is proposed to be used, (iv) that the means of entrance and exit to and from the place, are convenient, easy, sufficient and satisfactory and (v) if the place is in any enclosure, building, tent, booth or other erection that arrangements regarding ventilation and precaution against fire are suitable and sufficient. Under Rule 27 the Commissioner of Police has the power in his discretion at any time to cancel a licence granted under the rules or to suspend it for such period as he may specify and to direct the keeper of any place of public entertainment to close such place either permanently or temporarily or otherwise act with reference thereto if the Commissioner of Police is satisfied after such enquiry as he deems fit that the licensee is not a suitable person for continuing to hold the licence or in order to prevent any obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity or to prevent disturbance in such place and it is provided that every person keeping a place of public entertainment shall forthwith comply with such direction. In my view, the conditions of suitability provided for under Rule 5(1), the impugned Rule 13-A and Rule 27 are conditions which on a plain reading of Rule 33(1)(w) the Commissioner of Police is authorised to enact. It is implicit in his power to frame rules for licensing or controlling a place of public amusement or entertainment to frame rules relating to the suitability of a person for carrying out the duties and obligations imposed upon such a person under the rules and the terms of the licence. The existence of an enabling provision contained in Section 33(7) empowering the competent authority to refuse a licence to a person of notoriously bad character does not of necessity limit or restrict the power and authority conferred under the provisions of Section 33(1)(w). The mere fact that under Section 33(7) it is competent to the authority to refuse a licence to a person of notoriously bad character does not imply that he has no authority to refuse such a licence to any other person or that every other person is entitled as of right to such a licence irrespective of whether he possesses the requisite ability or capacity to carry out his obligation under the licence or not.

5. The question whether Section 33(7) of the Bombay Police Act, 1951, is exhaustive of the grounds on which a licence may be refused came up for consideration before Justice Tendolkar in Kaniz Begum v. Commr. of Police, Bombay, Misc. Petn. No. 332 of 1954, decided on 5-10-1954. In the course of his judgment the learned Judge in dealing with the argument that Rule 5 which lays down that the applicant for a licence must be a suitable person must be read having regard to the provisions of Section 33(7) of the Bombay Police Act, 1951, observes as follows:

'Now, it appears to me that the provisions of Section 33(7) have nothing whatever to do with the matter. Undoubtedly that confers jurisdiction on the appropriate authority to refuse a licence to a person of notoriously bad character; but that does not exhaust the grounds on which it may be prescribed that a licence may be refused.'

The learned Judge further observed in the course of his judgment that Rule 5 which required that the applicant for a licence should be a suitable person was in no way inconsistent with any provision of the Bombay Police Act.

6. I am further fortified in the conclusion to which I have arrived at when the previous legislation on the subject and the rules thereunder are considered. Under Section 22 of the City of Bombay Police Act, 1902, which has been repealed by the Bombay Police Act, 1951, it was provided that with the previous sanction of the Provincial Government the Commissioner of Police may from time to time make alter or rescind rule not inconsistent with the Act for licensing, controlling or in order to prevent the obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers int he vicinity, prohibiting, inter alia, the keeping of places of public amusement or entertainment. Among the rules framed in the exercise of the power vested under the said Section 22 was Rule 5 which laid down that every person applying for a licence to open or keep a place of public entertainment should, in the first instance, satisfy the Commissioner of Police, inter alia, as to the applicant's good character. Under Section 22(3) of the City of Bombay Police Act, 1902, it was provided that notwithstanding anything contained in the other provisions of the Section 22 or which might be contained in any rule made thereunder, it would always be lawful for the Commissioner of Police to refuse a licence for or to prohibit keeping of any place of public amusement or entertainment by a person of notoriously bad character. There appears to be no case in which the competence of the Police Commissioner to frame a rule regarding the applicant's character for obtaining a licence was challenged, as being outside the ambit of his powers. Section 167 of the Bombay Police Act, 1951, provides, inter alia, that all rules prescribed under the City of Bombay Police Act, 1902, shall so far as they are consistent with the Bombay Police Act, 1951, be deemed to have been prescribed under the Bombay Police Act, 1951. The Bombay Police Act, 1951, came into force on 11-6-1951 and the new rules thereunder were framed on 7-3-1953.

7. It is urged by the learned Advocate General that the Legislature whilst framing Section 167 had before it the rules framed under the City of Bombay Police Act, 1902, and have given effect to them under the provisions of the new Act and must be deemed to have considered them to have been validly framed. It is not necessary for the purpose of this case to rely upon the previous rules for giving validity to the rules framed by the Commissioner of Police under the Bombay Police Act, 1951. In my view, he had power and authority to frame the impugned rule and that it is not invalid on the ground that the Commissioner of Police was not competent to enact the same.

8. It is next urged by the learned counsel for the petitioner that Rule 13-A(4) is bad, inasmuch as it violates the fundamental right guaranteed to the petitioner, who is a citizen of India, under Article 19(1)(g) of the Constitution, which provides that all citizens shall have the right to practise any profession, or to carry on any occupation trade or business. Article 19(6) of the Constitution provides that nothing in Sub-clause (g) shall affect the operation of any existing law in so far as it impose or prevents the State from making any law imposing in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said Sub-clause. It is urged by Mr. Sorabjee, the learned counsel for the petitioner that by the impugned rule unfettered and unregulated power has been conferred on an executive officer without specifying any principles and without laying down any policy or criterion or test for determining whether a person is suitable for continuing to hold a licence or not. It is urged that the provisions make the renewal of a licence completely dependent upon the untrammelled and uncontrolled subjective satisfaction of an executive officer in respect of the petitioner's fundamental right to carry on any business. It is urged that there is no obligation upon the authority concerned to state any reasons for refusing to renew a licence, that there is no right of appeal given to a person to whom a licence has been refused, and that the citizen under the rule is left to the mercy of an executive officer. It is urged that the ideas of suitability may vary from person to person. It is said that the concept of suitability is a nebulous one and may depend upon the varying notions of an individual, upon his tastes, upon his ideas of morals and upon his beliefs. It is urged that one Commissioner may regard every woman as unsuitable to hold a licence, another may consider a weakling to be unsuitable and a third may regard old age as an impediment to suitability. It is urged that some may consider a person who drinks liquor even under permit to be unsuitable and another may consider him unsuitable because of his private life, which might have no bearing on his duties and responsibilities as a holder of a licence. It is urged that in the absence of any obligation to give reason it would be impossible for a person, to whom renewal of a licence has been refused, to know how such licence has been refused and that he is left entirely at the mercy of an executive authority and that the restriction imposed can in no sense be regarded as a reasonable restriction warranted in the interest of the general public. In support of his argument Mr. Sorabjee relied upon the case of R.M. Seshardri v. Dist. Magistrate, Tajore, : [1955]1SCR686 . That case related to a licence granted by the District Magistrate, Tanjore, to the owner of a cinema theatre in pursuance of two notifications issued by the State of Madras in the purported exercise of the powers conferred upon it by section 8 of the Cinematograph Act, (II of 1918). The impugned conditions related to the obligation on the licensee to exhibit at each performance one or more approved films of such length and for such length of time, as the Provincial Government or the Central Government may, by general or special order, direct and the obligation to exhibit at the commencement of each performance not less than 2,000 feet of one or more approved films. In holding that these conditions imposed unreasonable restrictions on the right of the licensee to carry on his business and were void as they infringed the fundamental right guaranteed under Article 19(1)(g)Ebrahim Vazir Mavat v. State of Bombay : 1954CriLJ712 . In that case the Supreme Court held that Section 7 of the Influx from Pakistan (Control) Act, 1949, under which the Central Government may direct the removal from India of any person who had committed or against whom reasonable suspicion existed that he had committed an offence under that Act, was void as it conflicted with the fundamental right of a citizen of India under Article 19(1)(e) of the Constitution, to reside and settle in any part of the territory of India. In the course of his judgment Justice Ghulam Hasan observes at p. 938 (of SCR): (at p. 231 of AIR) as under:

'The question whether an offence has been committed is left entirely to the subjective determination of the Government. The inference of a reasonable suspicion rests upon the arbitrary and unrestrained discretion of the Government, and before a citizen is condemned, all that the Government has to do is to issue an order that a reasonable suspicion exists in their mind that an offence under Section 5 has been committed. The section does not provide for the issue of a notice to the person concerned to show cause against the order nor is he afforded any opportunity to clear his conduct of the suspicion entertained against him. This is nothing short of a travesty of the right of citizenship.' Placing reliance upon the aforesaid observation, the learned counsel for the petitioner urged that in the present case also though there was provision in Rule 13-A(4) for an enquiry by the Commissioner, it was not obligatory on the Commissioner to issue a notice to the applicant to show cause why a renewal of the licence should not be refused and that the rule did not provide for any opportunity to the applicant of placing his case before the Commissioner. He urged that in this case also it could be said that there was nothing short of a travesty of the right of a citizen to carry on the business of a hotel-keeper. He further relied upon the decision in Dwarks Prasad Laxmi Narain v. State of Uttar Pradesh, : [1954]1SCR803 . That was a case under the Uttar Pradesh Coal Control Order, 1953. Under Clause 4(3) of the said Order the licensing authority had been given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licence under that Order and the only thing the authority had to do was to record reasons for the action taken. The Supreme Court held this restriction to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19(1)(g) of the Constitution and not coming within the protection afforded by clause (6) of the Article. Justice Mukherjee in that case observes at p. 813 (of SCR): (at 227 of AIR), that no rules had been framed and no directions given to regulate or guide the discretion of the licensing officer an that practically the Order committed to the unrestrained will of a single individual the power to grant, withhold or cancel licences in any way he chose and that there was noting in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. In dealing with the argument that a sufficient safeguard was provided against any abuse of power by reason of the fact that the licensing authority had got to record reasons for what he did, the learned Judge observed that the safeguard was hardly effective, for there was no higher authority prescribed in the Order who could examined the propriety of those reasons and revise or review the decision of the subordinate officer and that he reasons which were required to be recorded were only for the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person. In the present case it was urged that there was no necessity for the Commissioner of Police even to record any reasons for refusing to renew the licence.

10. Another decision relied upon was that of Ganapati Singhji v. State of Ajmer : [1955]1SCR1065 . That was a case under the Ajmer Laws Regulations of 1877. Under one of the rules framed under that Act the holding of a fair except under a permit issued by the District Magistrate was prohibited. Under one of the said rules the District Magistrate was empowered to 'revoke any such permit without assigning any reasons or giving any previous notice'. The Supreme Court in that case held that the Rule was ultra vires for the reasons that in authorising the District Magistrate to revoke a permit granted 'without giving any reason or previous notice' it invested him with a power to prohibit the exercise by the citizen of the constitutionally protected right to hold fairs. Justice Bose in that case observes at p. 1069 (of SCR): (at p. 190 of AIR) that 'this absolute and arbitrary power uncontrolled by any discretion is also ultra vires.'

11. My attention has also been drawn to the observations of Chief Justice Patanjali Shastri in the case of State of Madras v. V.G. Row, : 1952CriLJ966 . In dealing with Section 15(2)(b) of the Criminal Law Amendment Act, 1908, the learned Chief Justice at pp. 607-608 (of SCR): (at p. 200 of AIR) observes that the right to form association or unions has such wide and varied scope for its exercise and its curtailment is fraught with such potential reactions in the religious, political and economic fields, that the vesting of authority, in the executive government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects, to be duly tested in a judicial inquiry, is a strong element which must be taken into account in judging the reasonableness of the restrictions imposed by Section 15(2) of the said Act on the exercise of the fundamental right under Article 19(1)(c) of the Constitution viz., the right to form associations or unions. My attention was also drawn to the decision in Raghubir Singh v. Court of Wards, Ajmer, : [1953]4SCR1049 . In that case it was held that the result of the combined operation of Section 112 of the Ajmer Tenancy and Land Records Act, XLII of 1950, and the provisions of Sections 6 and 7 of the Ajmer Government Wards Regulation I of 1888 was that the Court of Wards could in its own discretion and on its subjective determination assume the superintendence of the property of a landlord who habitually infringed the fights of his tenants and the exercise of the discretion of the Court of Wards could not be questioned in a Civil Court. It was held that the provisions of Section 112, could not be regarded as a 'reasonable' restriction imposed in the interests of the general public on the exercise of the right conferred by Article 19(1)(f) because they completely negatived the right by making its enjoyment depend on the mere discretion of the executive. Mahajan J., in that case observes at p. 1054 (of SCR): (at p. 374 of AIR) that the result of the provisions was that by the subjective determination the Court of Wards, both the questions whether a particular person habitually infringed the rights of his tenants and whether his property should be taken over by the Court of Wards, stood settled and the landlord could not have recourse to a Civil Court on those questions. In the course of his judgment the learned Judge further observes that when a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law, can on no construction of the word 'reasonable' be described as coming within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a civil court.

12. Reliance was also placed on the decision in The Jesingbhai Ishwarlal v. Emperor, reported in : AIR1950Bom363 (FB). That case related to the provisions contained in the Bombay Public Security Measures Act, 1947. The learned Chief Justice of this Court held int hat case that an order of externment passed under Section 2(1)(b) of the Bombay Public Security Measures Act, 1947, suffered from two defects: viz., (1) no period for the duration of the externment order was laid down in the statue, and (2) the person against whom the order was to be made had no right to be heard in his defence and that the restriction placed by Section 2(1)(b) upon the fundamental right under Article 19(1)(d) and (e) of the Constitution was not a reasonable restriction. Relying on that case it was observed that in the present case also the right of being heard was not granted to a person before the renewal of the licence was refused to him and that the impugned rule must be regarded as bad.

13. My attention was also called to the case of The State of West Bengal v. Anwar Ali Sarkar, : 1952CriLJ510 . That was a case under the West Bengal Special Courts Act X of 1950. The object of the Act, as declared int he preamble, was 'to provide for the speedier trial of certain offences'. The procedure laid down by the Act for the trial by the Special Courts varied substantially from that laid down for the trial of offences generally by the Code of Criminal Procedure and the Act did not classify, or lay down any basis for classification of the cases which may be directed to be tried by the Special Court but left it to the uncontrolled discretion of the State Government to direct any case which it liked to be tried by the Special Court. In that case Justice Mukherjea at p. 328 (of SCR): (at p. 91 of AIR), observed that the necessity of a speedier trial was too vague, uncertain and elusive a criterion to form a rational basis for the discriminations made. The necessity for speedier trial might be the object which the legislature had in view or it might be the occasion for making the enactment. The learned Judge in that case at p. 328 (of SCR): (AT P. 91 of AIR) observes as under:

'In a sense quick disposal is a thing which is desirable in all legal proceedings. The word used here is 'speedier' which is a comparative term and as there may be degrees of speediness, the word undoubtedly introduces an uncertain and variable element. but the question is: how is this necessity of speedier trial to be determined? Not by reference to the nature of the offences or the circumstances under which or the area in which they are committed, nor even by reference to any peculiarities or antecedents of the offenders themselves, but eh selection is left to the absolute and unfettered discretion of the executive government with nothing in the law to guide or control its action.'

14. As against these cases, the learned Advocate General placed strong reliance upon the case of Harishankar Bagla v. State of Madhya Pradesh, : 1954CriLJ1322 . That was a case under the Cotton Textile (Control of Movement) Order 1948, promulgated by the Central Government under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946. Under clause 3 of that order a person was required to take a permit from the Textile Commissioner to enable him to transport cotton textiles purchased by him. The learned Judges in that case held that the Policy underlying the Control Order was to regulate the transport of cotton textiles in a manner that would ensures on even distribution of the commodity in the country and make it available at a fair price to all. The grant or a refusal of a permit was to be governed by the policy and the discretion given to the Textile Commissioner was to be exercised in such a way as to effectuate that policy. The conferment of such a discretion could not be called invalid and if there was an abuse of power there was ample power in Courts to undo the mischief. In that case the discretion was not held to be unfettered as there was a policy to be fund in the Act, which governed the exercise of that discretion.

15. Very strong reliance was placed by the learned Advocate General on the decision of a Division Bench of this Court in Natvarlal Ambalal v. State of Bombay, reported in 58 Bom L. R. 221. That was a case under the Drugs Act (XXIII of 1940). In that case the Court held that where a law conferred upon an authority unfettered, absolute and uncontrolled discretion,t he law would be bad, where the question of policy underlying the law was not involved. If on the other hand, the question was one of policy underlying the law as to how the law was to be enforced and as to how the provisions of the Act were to be carried out, then a discretion, be it unfettered, uncontrolled and absolute was not bad. The Court further held that in order to arrive at a decision whether or not the licensing authority under the Drugs Act, 1940, should issue a licence in favour of the applicant, it would be the duty of the licensing authority to make an appropriate enquiry into the business activities of the applicant, into his position in life and into his capacity to conduct the business in accordance with provisions of the Act and the rules made thereunder. Therefore, where an application was made in Form 19-A for a licence in Form 20-A it would be open to the licensing authority to take into consideration the competency of the applicant to supervise and control the sale, distribution and preservation of drugs in the suitability of the premises for preserving the properties of the drugs to which the licence would apply. That decision is binding on me.

16. Strong reliance was also placed by the learned Advocate General on the case of Govindji Vithaldas and Co. v. Municipal Corporation, Ahmedabad, reported in : AIR1959Bom26 . That is a decision of a Division Bench of this Court consisting of the Chief Justice and Justice Tendolkar. That was a case under the Bombay Provincial Municipal Corporations Act, Bom LIX of 1949. In that case the learned Chief Justice quoted with approval the remarks referred to above from the decision reported in 58 Bom L.R.221. The learned Chief Justice in that case at p. 134 (of Bom LR): (at p. 29 of AIR) observes as follows:

'In view of this (the remarks referred to above) what we have not to find is whether there is a policy of law underlying the Municipal Act which policy was to be carried out by the provision conferring discretion upon the Municipal Commissioner to issue licenses under Section 376. It will be noticed that in the Bombay High Court judgment it is clearly stated that however unfettered, absolute and uncontrolled the discretion might be, so long as it involves a policy underlying the law and it was necessary for carrying out the law, that discretion could not be held to be invalid.'

AT p. 135 (of Bom LR): (at p. 30 of AIR) the learned Chief Justice observes that in issuing a licence or withholding a licence the Municipal Commissioner was effectuating the policy of the law which was to regulate all business which that word was defined in the Act.

17. The learned Advocate General also drew my attention to a passage from Maxwell on the Interpretation of Statues, 10th edition page 123, where the learned author has observed as under:

'Where, as in a multitude of Acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute otherwise the act done would not fall within the statue. 'According to his discretion' means, it has been said, according to the rules, of reasons and justice, not private opinion: according to and not humour; it is to be, not arbitrary, vague and fanciful, but legal and regular; to be exercised, not capriciously, but on judicial grounds and for substantial reasons.'

These observations have been quoted by the learned Justice with approval in the case reported in : AIR1959Bom26 . In that case also there was no provision for appeal and no grounds were required to be stated for refusing to issue a licence.

18. Applying the law as laid down in the aforesaid two decisions what I have to consider is whether there is any policy laid down in the Bombay Police Act, 1951, and if there is a policy which is to guide the discretion of the Commissioner in refusing to renew a licence, then the discretion cannot be said to be arbitrary and unfettered. It is no doubt true that the Commissioner is not bound to give reasons, nor is it obligatory on him to issue a show cause notice, which he has in fact done in the present case. It may, however, be observed that Section 33(1) of the Bombay Police Act itself provides that any action taken under the rules of orders made under Sub-section (1) of Section 33 or the grant of a licence made under such rules or orders would be subject to the control and supervision of the State Government. The exercise of the powers by the Commissioner of Police under Rule 13A is subject to the control and supervision of the State Government. It is urged on behalf of the petitioner that this power cannot be said to be very effective when the authority is not bound to state any reasons whilst refusing to renew a licence and that a person would not be in a position to make an effective representation against such refusal to the State Government without knowing the reasons which had actuated the authority in refusing a licence. No doubt, the exercise of the power of control and supervision is not as effective a check as an appeal. In an appeal the person aggrieved has got a legal right to bring the matter before the appellate authority in order that the appellate power may be properly exercised, the authority making the order is under an obligation to state the grounds on which his decision is founded. The right of appeal is a very salutary check on the arbitrary exercise of powers by any authority. The exercise of the power of control and supervision by the State Government does not provide such an effective safeguard. Nevertheless, the existence of the power of control and supervision is itself a safeguard against an arbitrary and capricious exercise of the power. In this connection, reference may be made to the remarks of Mr. Justice Bhagwati in Pannalal Biniraj v. Union of India, : [1957]1SCR233 . The learned Judge, in connection with the transfer of cases under the Indian Income Tax Act, observes at pages 258-59 (of SCR): (at p. 409 of AIR) as follows:

'It is pointed that it will be next to impossible for the assessee to challenge a particular order made by the Commissioner of Income Tax or the Central Board of Revenue, as the case may be, as discriminatory because the reasons which actuated the authority in making the order will be known to itself not being recorded in the body of the order itself or communicated to the assessee. The burden moreover will be on the assessee to demonstrate that the order of transfer is an abuse of power vested int he authority concerned. This apprehension is, however, ill-founded. Though the burden of proving that there is an abuse of power lies on the assessee who challenges the order as discriminatory, such burden is not by way of proof to the hilt. There are instances where in the case of an accused person rebutting a presumption or proving an exception which will exonerate him from the liability for the offence with which he has been charged, the burden is held to be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish (vide R. v. Carr Briant, (1943) 1 K.B. 607 or in the case of a detente under the Preventive Detention Act seeking to make out a case of want of bona fides in the detaining authority, the burden of proof is held not to be one which requires proof to the hilt but such as will render the absence of bona fides reasonably probable (vide Ratanlal Gupta v. Dist. Magistrate of Ganjam., : AIR1952Ori52 ; also Brundaban Chandra v. State of Orissa : AIR1953Ori121 . If, in a particular case, the assessee seeks to impeach the order of transfer as an abuse of power pointing out circumstances which prima facia and without anything more would make out the exercise of the power discriminatory qua him, it will be incumbent on the authority to explain the circumstances under which the order has been made. The Court will certainly not be powerless to strike down the abuse of power in appropriate cases and the assessee will be without redress.'

It is open to the State Government in the exercise of its power of control and supervision to ask the authority to state the reasons which actuated the authority in passing the order. It is open to the State Government in exercise of such power of control and supervision to supersede and set aside an order that has been passed. In the present case, even though the authority may not be under a legal obligation to state the reasons for the order it has in fact done so. In all cases where there is a power of contort and supervision which may be exercised by a higher authority, it is always a salutary principle in practice that reasons should be given for the decision taken which would enable the higher authority to exercise effectively its power of control and supervision. In connection with the desirability of reducing the reasons to writing. Mr. Justice Bhagwati in the case : [1957]1SCR233

'If the reasons for making the order are reduced however briefly to writing it will also help the assessee in appreciating the circumstances which make it necessary or desirable for the Commissioner of Income Tax or the Central Board of Revenue, as the case may be to transfer his case under Section 5(7A) of the Act and it will also help the Court in determining the bona fides of the order as passed if and when the same is challenged in court as mala fide or discriminatory. It is to be hoped that the Income Tax authorities will observe the above procedure wherever feasible'.

In the present case this salutary principle has been observed in practice by the Commissioner of Police and he has given the reasons which actuated him in making the impugned order. Not merely that, but he has further observed the salutary and commendable principle of giving an opportunity to the person against whom he has passed the order to show cause against eh same. Having regard to the authorities cited at the bar, the principle that emerges is that even though a discretion may be conuched in wide terms if there is a policy to be found from the Act which is to govern the exercise of that discretion, then it cannot be said that an arbitrary and unfettered power is conferred upon the authority and that the restriction imposed is an unreasonable restriction. The preamble to the Bombay Police Act lays down as under:

'Whereas it is expedient to amalgamate the District and Greater Bombay Police Forces in the State of Bombay into one common Police Force and to introduce uniform methods regarding the working and control of the said Force throughout the State; And whereas it is necessary to consolidate and amend the law relating to the regulation of the said Force and the exercise of powers and performance of functions by the State Government and by the members of the said Force for the maintenance of public order; And whereas it is necessary to provide for certain other purposes hereinafter appearing.....'

One of the objects of the enactment is the maintenance of public order. For other objects one has to look to the body of the Act itself. Chapter IV, under which Section 33 appears, is headed 'Police Regulations.' The rules provide for licensing and controlling of persons and places in the interest of the public order and for the safety and benefit of the public. In the exercise of his discretion, the Commissioner of Police has to give effect to this guiding principle. Rule 13 contains words to the effect that if the Commissioner of Police 'is satisfied' that the licensee is not a suitable person, he may refuse to renew the licence. Now, the term 'suitable' as used in the rule as well as in other rules framed for keeping a place of public entertainment in contended for by the learned counsel for the petitioner. The term 'suitable' means suitable for the purpose of keeping a place of public entertainment. The suitability of a person means his suitability for holding or containing to hold a licence for keeping a place of public entertainment. It is his suitability for the purpose of carrying out the terms and conditions of the licence and for discharging the obligations imposed by the licence and the rules. It is not suitability dependent upon the caprice of the officer concerned. It is not suitability dependent upon the arbitrary will or fancy of the authority. In my view, there is a clear policy laid down in the Act and Rule 13-A is intended to subserve that policy. The discretion is conferred upon the Commissioner of Police by the said Act to carry out and effectuate that policy. It has to be exercised honestcised according to rules of reason and justice, according to law and not honour. The rule imposes reasonable restrictions in the interest of the general public within the meaning of Article 19(6) of the Constitution.

19. The learned Advocate General drew my attention to the decisions of the Supreme Court of the United States. He first referred to the case of Harry Gundling v. City of Chicago, reported in (1900) 44 Law Ed. 725. In that case it was held that an Ordinance giving the Mayor power to determine whether a person applying for a licence to sell cigarettes had good character and reputation and was a suitable person to be entrusted with their sale, but requiring him to grant a licence to every person fulfilling those conditions, or did not vest in him any arbitrary power to grant or refuse a licence, in violation of the provisions of the United States Constitution, 14th Amendment, either in regard to the clause requiring due process of law, or in that requiring equal protection of the laws. In the course of his judgment at p. 728 Justice Peckham quoted with approval the remarks of Mr. Justice Matthews in Yick v. Hopkins, (1886) 30 Law Ed. 220, which ran as under:

'The Ordinance, therefore, also differs, from the not unusual case, where discretion is lodged by law in public officers or bodies to grant or without licenses to keep taverns or places for the sale of spirituous liguors and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because in such cases the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature.'

20. My attention was also drawn to the case of Marion B. Kotch v. Board of River Port Pilot Commrs. for the Port of New Orleans, reported in 1947 91 L Ed. 1093. In that case it was held that a statute of Louisiana, by whose law all seagoing vessels moving between New Orleans and foreign ports must be navigated New Orleans and foreing ports must be navigated through the Mississippi river approaches to the Port of New Orleans, and within, it, exclusively by piolets who were state officers, which provided that new state pilots might be appointed by the Government of the state only upon certification of a state board of river pilot commissioners, themselves pilots and that only those who had served a six months' apprenticeship under incumbent pilots and who possessed other specific qualifications might be certified to be Governor by the Board, the practical effect of which was to deny appointment to persons possessing all the statutory qualifications except that they had not served the requisite six months' apprenticeship under Louisiana Officer pilots who, having unfettered discretion under the law in the selection of apprentices, usually selected relatives and friends of incumbents, did not as so administered violate the equal protection clause of the Fourteenth Amendment, the method adopted for the selection of pilots not being unrelated to the objective of securing the most efficient pilots.

21. The learned Advocate General also referred to the decision in The United States of America v. Robert M. Harries, reported in (1954) 98 L Ed. 989 where the Supreme Court of America laid down that if the general class of offences to which a statute is directed can be made constitutionally definite by a reasonable construction of the statute, the Supreme Court is under a duty to give the statute that construction. He also relied upon the decision in William Ludwig Ullmann v. United States of America, reported in (1956) 100 L Ed. 511, where the Supreme Court of America laid down that if a serious doubt of constitutionality was raised, the Supreme Court would first ascertain whether a construction of the statute is fairly possible by which the question may be avoided; indeed words may be strained in the candid service of avoiding a serious constitutional doubt. It is not necessary for the purpose of the present petition to discuss the decisions of the Supreme Court of the United States. The decision of our Supreme Court in : 1954CriLJ1322 , the decision of a Division Bench of this Court in 58 Bom LR 221 and another decision of a Division Bench of this Court in : AIR1959Bom26 are sufficient for the purpose.

22. The learned Advocate for the petitioner also challenged the validity of Rule 13-A on the ground that it violated the fundamental rights guaranteed by the Constitution under Article 14 of the Constitution. It is urged that Article 14 of the Constitution is infringed inasmuch as unfettered and unregulated discretion and control is given to the Commissioner of Police in refusing to renew a licence, which would result in discrimination between one citizen and another. I have already held that there is no such unfettered and unregulated discretion given to the Commissioner of Police and the challenge to the rule Article 14 must fail.

23. It is lastly urged that the order that has been passed by the Commissioner of Police is on the face of it invalid and indicates that the Commissioner of Police has clearly erred in making the said order. The order is a speaking order and the reasons which actuated the Commissioner of Police in passing the said order have been stated in the order. In the course of the order the Commissioner of Police observe that he was satisfied that the licensee was addicted to alcoholic drinks and was not a suitable person to hold a police licence to keep a place of public entertainment in Greater Bombay. In the show cause notice it has been stated that from the facts therein set out it appeared that the petitioner was addicted to drinking alcohol. It is then stated as under:

'A person given to this vice cannot, in the public interest, be allowed to keep and conduct a place of public entertainment. I, therefore, propose not to renew the licence issued in your favour.'

The grounds stated in that order are as under:

'Material has been placed before me, which goes to show that the licensee was arrested on 12-9-1956 for an offence punishable under Section 66(b)-XXV 49 as his breath was smelling of alcohol, but was subsequently discharged in the case for want of proof that the alchol consumed by him was prohibited liquor. Thereafter, the licensee on 20-11-1956 was arrested under Sections 66(b) XXV-49 and 85(i)(ii)-XXV-49 and the case against him is till pending in the Court. Material further shows that on 8-5-57 he was arrested under Section 85(i)(iii)-XXV-49 as his breath was found smelling of alcohol, but he was discharged for the same reasons as in the case first mentioned.'

Section 66(b) of the Bombay Prohibition Act XXV of 1949 referred to above refers inter alia to the offence of consuming any intoxicant in contravention of the provisions of that Act or of any rule, regulation or order made or of any licence, permit pass or authorization issued thereunder. Section 85(1) of the Bombay Prohibition Act XXV of 1949 provides as under:

'85(1). Whoever in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access--

(1) is drunk and incapable of taking care of himself, or

(2) behaves in a disorderly manner under the influence of drink or

(3) is found drunk but who is not the holder of permit granted under the provisions of this Act or is not eligible to hold a permit under Sections 40, 41, 46 and 46A shall, on conviction be punished .....'

The aforesaid grounds were the only grounds on which the Commissioner of Police came to the conclusion that the petitioner was addicted to drinking alcohol and that as he was a person given to this vice, he could not in the public interest be allowed to keep and conduct a place of public entertainment. So far as the first incident dated 12-9-1956 is concerned, the only allegation against the petitioner was that his breath was smelling of alcohol. It was not established that he had consumed prohibited liquor. So far as the second incident is concerned, that occurred on 20-11-1956. The chargesheet in that case has been exhibited as Ex. No. 1. The chargesheet states that the accused at Bombay on the 20th day of November 1956 did consume alcohol without permit and did behave in a disorderly manner additional charge under Section 110 of the Bombay Police Act XXII of 1951 viz., disorderly behaviour in a street. In his statement the petitioner denied being under the influence of liquor. He stated that he did not consume liquor. He, however, pleaded guily to the charge of disorderly behaviour in the street. On 22-8-1957 the Magistrate passed orders in that case. In giving judgment he observed that the medical certificate stated that the accused was not under the influence of alcohol and that there was no evidence to show that the accused had consumed prohibited liquor and that the charges under Section 66(b) and 85(i) and (ii) of the Bombay Prohibition Act, 1949, failed. He held the accused guilty under Section 110 of the Bombay Police Act XXII of 1951, the accused having admitted his guilt, and admonished him. There is no reference to the charge under Section 110 of the Bombay Police Act, 1951, in the show cause notice or in the order passed by the Commissioner of Police. The order of the Commissioner of Police was passed on 2-9-1957. In the order it has been stated that case was still pending in the Court. That statement is not accurate inasmuch as on 22-8-1957 the accused was acquitted of the charges referred to in the order of the Commissioner of Police. It is urged by the learned counsel for the petitioner that this fact clearly shows the non-application of the mind of the Commissioner. This argument presupposes that the Commissioner knew at the time when he passed the order that the petitioner had been discharged on 22-8-1957 in respect of the offences referred to by him. There is no evidence to show that the Commissioner of Police was at any time prior to the date of his order of 2-9-1957 aware that the case was not pending as stated by him, but that it had already been disposed of. I do not see any substance in this contention.

24. So far the third incident is concerned, his breath was found smelling of alcohol, but he was discharged for want of proof that the alcohol consumed by him was prohibited liquor. The Commissioner of Police seems to have proceeded on the footing that in all these 3 cases there was a consumption of liquor by the petitioner without a permit. Assuming that to be so, it cannot be said from three incidents cited by the Commissioner of Police, which took place on 12-9-1956, 20-11-1956 and 8-5-1957, that the person concerned in the same was addicted to drinking alcohol. The expression 'addict' is applicable to a person who habitually is given to a practice. From the instances referred to above the Commissioner of Police may have a strong suspicion about the petitioner having consumed alcohol on the three occasions therein referred to, but that would not justify him in considering that the petitioner was addicted to drinking alcohol and from that to conclude that he was given to that public that he should be allowed to keep and conduct a place of public entertainment. in my view, it is neither fair not reasonable that such an inference should be drawn from the aforesaid facts. The Commissioner of Police was not justified in coming to the conclusion that the petitioner was addicted to drinking alcohol and was given to that vice and was as such unfit to keep and conduct a place of public entertainment. The order passed by him is, therefore, bad in law.

25. It is not necessary for the purpose of this case to determine whether a person who habitually takes liquor under a permit is or is not a fit and proper person to be allowed to keep and conduct a place of public entertainment.

26. As the order passed by the Commissioner of Police is patently bad, the petitioner is entitled to the issue of a writ of mandamus directing the Commissioner of Police to withdraw the said order. In view of the fact that the petitioner has failed in his contention that Rule 13-A is bad as it violated the fundamental rights of the petitioner guaranteed under Article 19(1)(g) and Article 14 of the Constitution and as the controversy in that connection has taken up considerable time, the fair order to make as regards costs would be that each party should bear and pay its own costs and I order accordingly.

27. Mandamus issued.


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